Case: 16-15928 Date Filed: 07/13/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15928
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20329-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DINSEN RICHARD ST-TURBAIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 13, 2018)
Before WILSON, JILL PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Dinsen Richard St-Turbain appeals his conviction for knowingly possessing
a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). St-Turbain
argues that the district court erred in adopting a magistrate judge’s report and
recommendation (R&R), which recommended that the district court deny St-
Turbain’s motion to suppress evidence obtained from a traffic stop. He argues that
the district court’s error came from failing to perform an independent, de novo
review of the transcript of the suppression hearing before the magistrate judge. St-
Turbain also argues that the district court abused its discretion in admitting his
prior conviction for possessing a firearm as a convicted felon under Federal Rule
of Evidence 404(b). After careful review, we remand on a limited basis.
A district court judge may “designate a magistrate judge to conduct
hearings” on a motion to suppress and to submit to that district judge “proposed
findings of fact and recommendations for the disposition” of the motion. 28
U.S.C. § 636(b)(1)(B). Upon receiving such R&R, parties may file written
objections.
Id. § 636(b)(1)(C). If a party has objected to any portion of the R&R,
the district judge “shall make a de novo determination of those portions of the
report . . . to which objection is made.”
Id. Such de novo review “is essential to
the constitutionality of section 636,” because the section “allows a magistrate
[judge] to take over several functions that are otherwise reserved to Article III
judges.” Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 512 (11th Cir. 1990) (per
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curiam); see also United States v. Elsoffer,
644 F.2d 357, 358–59 (5th Cir. 1981)
(per curiam).1
We have held that when conducting such de novo review, a district judge
must ensure that the record “reflect[s] with certainty that a trial judge actually read
the transcript of the hearing before a magistrate [judge] on a motion to suppress,
before adopting the magistrate[ judge’s] recommendation.”
Elsoffer, 664 F.2d at
358; see also Jeffrey
S., 896 F.2d at 513 (“If the magistrate [judge] makes findings
based on the testimony of witnesses, the district court is obliged to review the
transcript or listen to a tape-recording of the proceedings.”); Wilson v. Cooke,
814
F.2d 614 (11th Cir. 1987) (per curiam). Further, “[t]he constitutional
safeguards . . . are such that an appellate court must be satisfied that a district judge
has exercised his non-delegable authority by considering the actual testimony, and
not merely by reviewing the magistrate[ judge’s] report and recommendations.”
Elsoffer, 644 F.2d at 359.
Here, the district court stated only that it had reviewed the pleadings, the
R&R, and the parties’ responses. The transcript of the suppression hearing was not
filed until several weeks after the district court adopted the R&R. Further, the
district court stated on the record that it was according total deference to the
1
See Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that
all decisions of the “old Fifth” Circuit handed down prior to the close of business September 30,
1981, are binding precedent in this circuit).
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magistrate judge’s credibility findings. Under these circumstances, the record
cannot reflect with certainty that the district court read the transcript of the
suppression hearing, as it was required to do. Accordingly, we retain jurisdiction
of this appeal and remand to the district court for the limited purpose of allowing it
to review the transcript of St-Turbain’s suppression hearing and state whether it
would still deny his motion to suppress. We decline to reach, at this time, whether
the district court erred in admitting St-Turbain’s prior conviction pursuant to Rule
404(b).
LIMITED REMAND.
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